The complainant was just formed. It recently applied for a trademark on “Good Universe” on an intent-to-use basis, meaning it hasn’t even used its mark in commerce yet.

The domain owner, a domain investor, has owned the domain name since at least 2004.

The complainant (actually two, True North Media, LLC and Good Universe Media, LLC) filed the case after it failed to negotiate to buy the domain.

The complainant even admits in the complaint that it will be difficult to win its case because the domain was registered well before it came up with its name.

However, it proffers:

…the Complaint advances the novel theory that the Respondent’s public advertisement of the Domain Name for sale, and its subsequent response to the Complainants’ attempts to purchase the Domain Name, demonstrate bad faith because the Respondent must have realized from the outset that the Domain Name was likely to correspond to a trademark that some party would ultimately pursue in the future, and that this unknown party could be induced to pay a high price for the Domain Name. The Complainants expressly seek a ruling to the effect that “registration of a domain name containing meaningful combinations of commonly used words, which would likely have its rights acquired in the future, solely for the purpose of gaining commercially from confusion or from selling it to the future rights holder for a profit constitutes bad faith registration and use.

The panel ruled that the complainant didn’t prove any of the three points necessary to win it case.

Slam dunk RDNH, right?

Amazingly, panelist W. Scott Blackmer declined to find RDNH. His rationale is simply amazing: because the complainant admitted upfront that it was a long shot, and offered a new (but ridiculous) idea of why it thought this was cybersquatting, he’s going to let them off the hook:

The Complaint concedes that UDRP complaints rarely succeed when a disputed domain name was registered prior to the establishment of a mark. The exceptions cited in the Complaint, as discussed above, do not stand for such a broad proposition as the Complainants urge, that it is bad faith to register domain names based on any “meaningful combinations of words” that might become trademarks in the future. Such an interpretation of the UDRP would effectively eliminate, in most cases, the Policy’s requirement for bad faith registration. The Complaint is forthright, however, in presenting the factual chronology and arguing for an extension of existing interpretations of the Policy. Therefore, the Panel does not conclude on this record that the Complaint was brought in bad faith or primarily to harass the Respondent.

Um, OK. So I can place a burden on you by filing a bogus UDRP. But if I state up front that I know it’s a long shot, that’s not abuse of the policy.

Comments

Instead of allowing complainants to pick the UDRP provider, registrants should be allowed to declare (in the WHOIS, in public) their choice of UDRP providers. Doing this would reduce the “race to the bottom” between providers, and instead create incentives for a “race to the top”, and start to create some balance. If providers faced a loss of market share because they have panelists who don’t enforce the actual UDRP rules (including RDNH), they would have the incentives to provide better training/education, etc.

Since the whole provision of UDPR is promoted by ICANN as a means for businesses to acquire registered domains easily, it’s not RDNH. I already pitched that thought to Rick Schwartz re saveme.com . . . the complainants were only taking advantage of a provision ICANN promotes to help them get their domain from “cybersquatters,” therefore, they did nothing hugely untoward . . . They only took advantage of a provision ICANN promotes!

When the authorities send out conflicting messages, there is justified confusion.